According to the DTPA, a “consumer” is defined as an individual, partnership, corporation, the state of Texas, or a subdivision or agency of the state of Texas who seeks or acquires by purchase or lease, any goods or services. However, the term “consumer” specifically excludes a business consumer that has assets of $25 million or more or that is owned or controlled by a corporation or entity with assets of $25 million or more.False, Misleading, or Deceptive ActsA consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish:The use or employment by any person of a false, misleading, or deceptive act or practice that is: specifically described in Subsection (b) of Tex. Bus. & Com. Code § 17.46; andrelied on by a consumer to the consumer’s detriment;Breach of an express or implied warranty;Any unconscionable action or course of action by any person; orThe use or employment by any person of an act or practice in violation of Chapter 541 of the Insurance Code.Often, plaintiffs will pursue DTPA claims based one or more acts described in Tex. Bus. & Com. Code § 17.46(b).

See Clean Crude?, supra note 1. States also have laws that govern unfair or deceptive acts or practices (UDAP laws). See, e.g., Cal. Bus. & Prof. Code § 17500; NY Gen. Bus. Law §§ 349, 350; TX Bus. & Com. Code § 17.46. Many state UDAP laws are similar in scope to the FTC Act[3] – many are even referred to as “Little FTC Acts.”

Notably, the Illinois governor issued an executive order last week authorizing the state attorney general to investigate claims of price gouging related to “essential medical supplies.” See infra, at note 16.Tex. Bus. & Com. Code Ann. § 17.46(b)(27), § 17.50.Cal. Penal Code § 396(i).See, e.g., Va. Code § 59.1-527 (2008).Cal.

[6] “$10 Toilet Paper? Coronavirus Gouging Complaints Surge in US,” The New York Times (March 19, 2020), (https://www.nytimes.com/aponline/2020/03/19/business/ap-us-virus-outbreak-profiteering.html).[7]Id.[8]See Tex. Bus. & Com. Code § 17.46(b)(27), § 17.4625.[9] Dunphy, Mark, “Texas Attorney General has received 255 consumer complaints about coronavirus price gouging,” San Antonio Express News (March 17, 2020), (https://www.expressnews.com/news/local/article/Texas-AG-has-received-255-consumer-complaints-15137363.php).

Abbott subsequently has amended the list of counties declared to be in the disaster zone three times, now numbering 58 counties total.1 In addition to providing much needed relief for the people and businesses affected by Hurricane Harvey, the Governor's declaration of disaster also has implications for anyone doing business within the affected counties. The Texas Deceptive Trade Practices-Consumer Protection Act (DPTA) provides that it is a false, misleading, or deceptive act or practice to take advantage of a disaster declared by the Governor by: (a) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price, or (b) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine or another necessity Tex. Bus. & Commerce Code §17.46(b)(27). Unfortunately, there is little guidance from the Texas courts as to what constitutes a "necessity" or "an exorbitant or excessive price."

tion regarding the court operations of the United States Court of Appeals for the Fifth Circuit is available online.Information regarding the operational status of the District and Bankruptcy Courts in the Southern District of Texas, including links to court orders issued up to the time of publication, is available here.Price Gouging and LootingWhile we have witnessed many heartwarming acts of community during this time, we also are aware that bad actors use disasters to take advantage of consumers. For you or your employees, we include the following information to address and educate concerning incidents of price gouging and looting.Taking advantage of a disaster declared by the governor is unlawful. The Texas Attorney General’s Office Consumer Protection Division protects consumers from false, misleading or deceptive acts or practices in the conduct of trade or commerce, such as price gouging. Texas has established a hotline to report suspect price gouging: 800.621.0508.According to Section 17.46(b)(27) of the Texas Business and Commerce Code, it is unlawful to take advantage of a disaster declared by the governor by:Selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; orDemanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity.Complaints may be filed with the Consumer Protection Division of the Texas Attorney General’s Office. Upon receipt of a complaint and following a thorough investigation, the Consumer Protection Division files lawsuits to protect the public interest and protect consumers. To file a consumer complaint, it is necessary to obtain:The name of the business or individual against whom you are filing the complaint;The business or individual’s complete address, including ZIP code; andA detailed description of your complaint.Complaints against a regulated business or licensed professional should be addressed to the appropriate regulatory agency. The Texas Department of Licensing and Regulation is t

al state data security breach statutes. Such statutory violations, Plaintiffs argue, constitute prima facie evidence of negligence. (Doc. 79, p. 30).Based on these facts, which the Court accepts as true at this state of litigation, Plaintiffs have advanced a plausible claim that Wendy’s actions and omissions created a “foreseeable zone of risk” such that a duty could be recognized. Accordingly, the Motion to Dismiss will be denied as to Count II.3. Violations of State Consumer Protection LawsIn Count III, Plaintiffs allege violations of six state consumer protection statutes:Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.204(1);New York Business Law, N.Y. Bus. Law § 349(a);New Jersey Consumer Fraud Act (“NJCFA”), N.J. Stat. § 56:8-2;Mississippi Consumer Protection Act (“MCPA”), Miss. Code Ann. §§ 75-24- 5(1), 2(e), 2(g);Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. §§ 47-18- 104(a) & (b)(5); andTexas Deceptive Trade Practices Act (“TDTPA”), Tex. Bus. & Com. Code Ann. §§ 17.46(a), (b)(5), (7);(collectively, the “Consumer Protection Claims”).Wendy’s moves to dismiss Count III, arguing—among other things—that Plaintiffs Consumer Protection Claims fall short of basic federal pleading requirements.Rules 8 and 10 of the Federal Rules of Civil Procedure set forth minimum requirements for complaints filed in this Court. At a minimum: (1) pleadings must include“short and plain” statements of the pleader’s claims set forth in “numbered paragraphs each limited as far as practicable to a single set of circumstances”; and (2) pleadings must not include mere labels, legal conclusions, or formulaic recitation of the elements of a claim. See Fed. R. Civ. P. 8(a), 8(d), 10(b); see also M.D. Fla. R. 1.05, 1.06. Shotgun pleadings result when a party “fails to follow Rules 8 and 10.” See Hickman v. Hickman, 563 F. App’x 742, 744 (11th Cir. 2014) (per curiam). When confronted with a shotgun complaint, district courts must require repleader. See Paylor v. Hartford Fire Ins., 748 F

TEX. BUS. & COM. CODE ANN. § 2A.110 (Vernon 1994).151. TEX. BUS. & COM. CODE ANN. § 17.46 (Vernon 1987).152. Id. § 17.47.153.

Texas LawThe Texas Deceptive Trade Practices–Consumer Protection Act prohibits “[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Tex. Bus. & Com. Code Ann. § 17.46(a). To recover under the Act, a plaintiff must prove that he “relied on” the defendant’s conduct to his detriment.

The Texas Deceptive Trade Practices—Consumer Protection Act prohibits "[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce." Tex. Bus. & Com. Code Ann. § 17.46(a) . To recover under the Act, a plaintiff must prove that he "relied on" the defendant's conduct to his detriment.